1996 Second Quarter Release

ON  TRACK   WITH   RAILWAY  CLAIM  SERVICES,   Inc.
Volume 2 Issue 2                                                                                                     2nd Quarter, 1996

RAILWAY CLAIM SERVICES

 

 

FROM THE DIRECTOR

Lexington, TN (04/96) - Weyauwega, Wisconsin. A town and it’s people in the national news. Weyauwega was the location of fifteen derailed liquid propane cars derailed on the Wisconsin Central railroad on March 04, 1996. The small town of Weyauwega and the surrounding two miles were evacuated. Over 2500 people were affected directly, and hundreds more indirectly.

When Railway Claim Services, Inc. (RCSI) received notification of the accident in the early morning of March 04 we had little idea of the magnitude or the duration of the evacuation.

The damage control and the claims management process went, and continues to go, as scripted. RCSI developed a disaster claims management program for the Wisconsin Central Ltd. (WC) approximately four years ago. The program implemented for the WC is comparable to the program RCSI has in place for over 300 railroads throughout the United States. Railway Claim Services, Inc.’s disaster claims management program was evolved from the collective experience of the railroad industry and has shown to be effective even in the most prolonged evacuation.

The residents of Weyauwega were out of their home for nearly three weeks. Compounding the problem was that during this time many of the homes and businesses lost gas, which was shutoff to prevent secondary explosions in case one or more of the tank cars exploded, and electrical power . . . at a time when the temperature dipped to ten below zero. With no gas and in some instances electricity for heat, water pipes burst, and damage from water added to the overall losses.

Within hours of the accident RCSI claims managers were on the scene, arranging for hotel and restaurant services for the evacuees, all direct billed. RCSI established a temporary claims office to deal with hundreds of daily questions and individual needs of the evacuees. What do you do with this many people who suddenly have no jobs, no money, and no place to go and often no way to get there? During the first day it became apparent that the evacuees would not be returning home soon.

Daily public briefings were held, jointly by Wisconsin Central and the governmental agencies that seemed to spring from nowhere. These very high tech and detailed informational meetings explained the progress of the off-loading of the tank cars and provided a visible time-line for the evacuees on when they could return to their homes.

Through it all RCSI claims managers were there, pre-registering the evacuees, meeting the daily needs of the soon-to-be claimants, etc. And, on the nineteenth day, most of the evacuees were allowed to begin returning to their homes and businesses. Although some have still not returned, and some will never return, because of the extensive damage, the expanded temporary claims center opened, manned by up to eighteen RCSI claims managers to settle claims.

It was bad, as all disasters are, but this disaster was managed, by all participants, as well as any derailment and evacuation in the United States, ever! This includes all phases of the management of the evacuation, from the tank car off-loading, to the communications with the evacuees, to the process established to inspect and repair the evacuee homes to the claims management process. Railway Claim Services is proud to have been a part of such a monumentally successful undertaking. But the credit goes to the Wisconsin Central Ltd. I am sure you will see and hear much more about this in the months and years to come. A success of this magnitude must be shared.

VERDICTS & POINTS OF LEGAL INTEREST

UNFINISHED BUSINESS: In the last newsletter I asked you to watch closely the US Supreme Court's decision in the case of Norfolk & Western Railway v. Hiles. The decision is in, and it's unanimous. Said Justice Thomas in delivering the opinion of the Court, "Before us in this case is the question whether Section(s) 2 of the Safety Appliance Act (SAA), 49 U. S. C. A. Section(s) 20302(a)(1)(A)(Supp. 1995), makes a railroad liable as a matter of law for injuries incurred by a railroad employee while trying to straighten a misaligned drawbar. We hold that it does not and, accordingly, reverse the judgment of the Illinois Appellate Court." YES! Common sense prevails at last. This unanimous decision overturns a $492,500 verdict awarded to William J. Hiles, who injured his back in 1990 while adjusting a drawbar on a railcar at N&W's Luther Yard in St. Louis. Kudos to the court and to Mr. Carter Phillips, the attorney representing the N&W.

In the same vein, I mentioned a product called the "knucklemate" in the last newsletter. Several of you called requesting more information on this product. While I did respond to each inquiry, there may be more of you who did not call and wish to know more. This product is manufactured by Knucklemate, a Division of Riverview Pump Well & Septic Tank located at 2356 Soutel Drive in Jacksonville, Florida 32208. Mr. Rick White will be glad to provide information if you will call him at (904) 764-4568 or fax (904) 764-4569. Rick provided me with a video tape showing the use of the Knucklemate and it is an impressive safety product.

FELA - LIRR - Let's stick to the good news for a while. After inspecting signal box circuitry along the railroad right-of-way, a 27 year old signal inspector falls while descending an embankment to get back to his truck. He suffers a torn medial meniscus of the right knee. He sues, claiming the railroad should have either installed a stairway or provided an alternate route for reaching the signal box. Defense verdict.

FELA - Conrail - A 43 year old office worker claims his chair collapsed, causing him to sustain a ruptured disc. A subsequent examination of the chair found that the height adjustment mechanism was in fact broken. Unfortunately for the plaintiff, each time he gave his version of the accident, he told a different story. Most confusing. The jury didn't buy any of the many versions. Defense verdict #2.

FELA - Conrail - Back to reality. Brakeman jumps onto a moving car in an attempt to set the handbrake. The brake fails to function. The brakeman, fearing a possible collision further down the track, jumps from the moving car. The car is moving about 2 to 5 miles per hour. He jumps approximately 2 feet to the ground. So, are we looking at minor injuries here, or what? According to the plaintiff's highly competent medical expert, we are looking at a fractured left ankle and an exacerbation of pre-existing problems with both the cervical and lumbar spine. We also have a violation of the Safety Appliance Act. Ouch! Can't let this one go to the jury. Settled for $1,250,000. Plaintiff also gets his RRB disability pension.

FELA - SPRR - Conductor is struck in the face by a rock thrown through the open window of the locomotive at an alleged "problem crossing". How was the railroad negligent? They didn't have special agents posted at the crossing, of course. The plaintiff claims memory loss, depression, continuing headaches and TMJ. The St. Louis jury agrees and in their compassion, awards him $900,000.

FELA - BARR - A 44 year old trackman slips and falls, landing on his butt and twisting his back. Wise Honest Optimistic Reasonable Experts in the medical field testified that despite the plaintiff's normal MRI and EMG findings, he was now physically incapable of performing his duties as a trackman. An equally qualified vocational rehabilitation consultant testified that the plaintiff would be unlikely to find employment in the area of rural Maine that he called home. The jury is convinced and awards the plaintiff $500,000, reduced by 10% for the plaintiff's own glaring negligence.

FELA - SPRR - A 63 year old mechanic claims that exposure to motor oil caused him to develop penile cancer. There are a lot of things I would like to say about this case, but in the interest of good taste, I won't. The case was settled short of trial for $145,000.

Trespasser - MPTA - In the last newsletter, I stressed the dangers of trespasser claims. Here's a five million dollar verdict to underscore that point. A 13 year old Texas boy was returning home from school and walking alongside defendant's tracks. He and some friends were amusing themselves by jumping on and off a slow moving train. His feet slipped off the ladder and underneath the wheels. He was dragged about 400 feet and lost both legs. The area in which the accident occurred had a long history of trespasser use, primarily school kids. Several years earlier a 16 year old boy had been injured in the same location. The railroad had agreed to build a fence to keep kids away, and had in fact built the fence. The railroad had not, however, maintained the fence. Holes had been cut in the fence allowing free access again to the area. The jury found the railroad to have been grossly negligent and penalized it accordingly. Again, please let me stress this point - DO NOT allow trespassers unchallenged access to railroad property. Call RCSI if you need assistance with this problem.

STOP/LOOK/LISTEN

Most, if not all, states have the same requirements for motorists approaching a highway-rail intersection. That requirement is that the motorist must be prepared to stop not closer than 15 feet nor further than 50 feet from the nearest rail. If this law was obeyed, grade crossing accidents would be as rare as airplane accidents. What's the problem? Well, according to a study conducted at Kansas State University, the majority of motorists (65%) do not know the meaning of the Railroad Advance Warning Sign. Unless you are aware that you are approaching a crossing, it is difficult to prepare to stop. RCSI is working on a press release which will be available at no cost for distribution to your local news media, drivers' education classes, etc. which identifies the Railroad Advance Warning Sign and explains the driver's responsibility in relationship to the sign. We also hope to have available a selection of posters suitable for various target groups illustrating the same ideas. Please let me know if you are interested in either of these items.

Speaking of signs, another study, this one directed toward the standard crossbucks, has reached some very interesting conclusions. Look these over and see what you think.

1) Double-sided crossbucks are more visible than the standard single-sided crossbucks.

2) Marking only a portion of the back of the crossbuck post with reflective material confuses motorists. If reflective material is not installed the full length of the entire post, it makes the crossbucks appear to float in the sky, distorting the driver's depth perception of the crossing and preventing the motorist from accurately determining the exact location of the crossing.

3) When the crossbucks and posts are covered with reflective material, a strobe effect is created when the crossing is occupied by a moving train. This strobe effect is a function of train speed and is created by the automobile headlights shining on the reflective surface of the crossbuck post on the opposite side of the crossing and being reflected back between cars and wheels.

This study was conducted by Stephen Brich, a transportation research scientist for the Virginia Transportation Research Council. While the results are impressive, to me they represent yet another attempt to engineer grade crossing safety. I personally feel that grade crossing safety is more a function of education than engineering. I lack statistical evidence to support my belief, but my experience in claims work has brought me into contact with many drivers who were involved in minor crossing accidents or close calls. These people have been "educated". It has been my experience that these drivers and those people within their sphere of influence have much more respect for the dangers inherent at grade crossings than those drivers dependent solely on the flashing lights, gates, bells, etc.

BITS AND PIECES

A plaintiff attorney in St. Louis has prevailed in what is believed to be the first successful locomotive crashworthiness case against a railroad. The case involves an SP engineer who was involved in a head-on collision with a BNRR train. The engineer suffered severe injuries to his pelvis, knee and back. He suffered frostbite as a result of being trapped in the locomotive in extremely cold weather for more than three hours before he could be rescued. His conductor was killed in the accident. Plaintiff also suffers recurring nightmares and psychological problems from being trapped for so long in such a small space with the dead conductor. His attorney contended that the locomotive was not crashworthy because it did not protect against crushing injuries in head-on collisions. He further argued that the train crews are not taught simple safety procedures such as how to position themselves in the event of a derailment of crash, and unlike assembly-line automobiles, railroad locomotives are custom ordered. He convinced the jury that the railroad had knowledge of modifications such as reinforced collision posts and thickened cab walls which would have helped to maintain the integrity of the locomotive cab for more than one year prior to the accident, but chose not to make the modifications because it would have added approximately 2% to the total cost of the locomotive unit. While head-on collisions are not common, this has opened an avenue for liability litigation which could expand into other areas. Grade crossing accidents resulting in injuries to the train crew or derailments come immediately to mind. Remember, one of the primary duties the railroad owes to its employees under the FELA is to furnish a Safe Place To Work.

Where is the safest place to work? Well, there are literally dozens of shortline railroads which have never experienced a work related injury. As far as the Class 1's, CSX Transportation, Inc. might be a good place to start. CSX has announced that 1995 was the safest year in the company's history. Employee injuries dropped by 28 percent from 1994 levels to 1.7 injuries per 100 employees, compared with 2.3 injuries per 100 employees in 1994. In the seven year period from 1989 to 1995, CSX has reduced employee personal injuries by 82 percent. We at RCSI offer our congratulations and applaud the commitment shown by both labor and management to achieve these significant results. Unfortunately they have not been able to duplicate this success in the area of grade crossing accidents which saw an increase of 7 percent in 1995 over 1994, and trespasser claims continue to be a major problem with 71 trespasser deaths in 1995. Still, CSX is blazing a trail which the other Class 1's must follow if safety records are to be improved.

In January, Chicago area residents expressed their concern to Transportation Secretary Frederico Pena about an upcoming proposal to scale back bans on train horns. Under the 1994 Swift Rail Development Act, the FRA was directed to issue a rule mandating the use of horns at all public grade crossings by November of 1996. Mr. Pena indicated that the government would be willing to consider less noisy alternatives to train horns in residential neighborhoods. This is a poor position to take. In a study completed in 1995, the FRA found that the likelihood of a crash is 84 percent higher at a crossing where train horns are banned as compared to a crossing where the horn signal is allowed. If you would like for your voice to be heard in this debate, please contact FRA's Office of Safety at (202) 366-0533.

RCSI's 1996 Training Seminar

RCSI will conduct a training seminar addressing crossing accident, FELA, trespasser and general liability investigation and claims management on May 13 and 14, 1996. The location will be the Holiday Inn in Matteson, Illinois (just outside Chicago at the junction of I-57 and the Lincoln Highway) The seminar will start at 8:30 AM daily, and will conclude at 5:00 PM on day 1 and noon on day 2. There are a few slots remaining open. Registration for the 2 day event is $950 per person, which includes room for the night of May 13th and lunch on day 1. Time is running out. If you haven't yet registered, do it now. Please call 1-800-786-5204.

One last thing before I close. You have read Mr. Little's remarks earlier about the derailment in Weyauwega. This was a perfect example of how a well designed disaster plan can work. How well it worked can be gauged by the media response, as illustrated in the editorial cartoon reprinted below. The evacuees and all others affected by the derailment were treated fairly, courteously and promptly. Ill feelings toward the Wisconsin Central Railroad were never allowed to develop. It was the attorneys who flocked to the scene who were perceived as the villains in this tragedy. We at RCSI hope you are never faced with any problem of the magnitude that confronted the Wisconsin Central on the morning of March 4, 1996. If you are, however, we stand ready to assist.

RCSI welcomes your input. If you have any questions or comments of interest to our industry, please contact Dave Gardner at (901) 967-1796 or FAX your message to (901) 967-1788.

Visit the Railway Claim Services, Inc. webpage. It’s located at www.railway-claim-services.com

Railway Claim Services, Inc. is the recognized leader in independent railroad claims management, which includes investigation, negotiations, and all those things in between. If RCSI is not already a partner in your loss control and claims management program are you accepting too much risk?

Railway Claim Services, Inc. 52 South Main Street Lexington, Tennessee

800-786-5204

FAX (901) 967-1788

Email           dave_gardner@railway-claim-services.com

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